M.M. Singh Bedi, J. - (1.) PETITIONER seeks the concession of regular bail in a case registered on the basis of secret information that the petitioner was habitual of selling intoxicating pills to college going students. He was apprehended near the campus of college with 5000 tablets of phenotil, 210 tablets of Tramacet, 1600 tablets of lomotil, 700 tablets of Alprazolam and two bottles of rexcof on March 29, 2013. 180 days required to present challan expired on September 24, 2013. As an abundant caution, the prosecution agency had moved an application for extension of time under Section 36A(4) of the NDPS Act, for short 'the Act', on September 21, 2013 as the report of the Forensic Science Laboratory had not been received. The petitioner also sought bail by moving an application under Section 167(2) Cr.P.C. on September 24, 2013. Application for extension of the time for presentation of challan was allowed on September 27, 2013. The application for bail filed by the petitioner on expiry of 180 days was dismissed on October 9, 2013 on presentation of challan.
(2.) COUNSEL for the petitioner has contended that indefeasible right has accrued to the petitioner on expiry of 180 days and that said indefeasible right could not have been defeated by delaying in adjudication of application under Section 167(2) Cr.P.C. giving an opportunity to prosecution agency to present challan. I have heard learned counsel for the petitioner. In a judgment passed by this Court in Hardeep Singh x State of Punjab, CRM M -17260 of 2014 granting bail in similar circumstances vide order dated May 29, 2014, this Court has observed that whenever any application under Section 36A(4) of the Act was filed by the prosecution agency seeking authorization of detention of an accused in custody beyond the period of 180 days, said application should be decided expeditiously. Similarly, the Apex Court in the case of Union of India through CBI Vs. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav,, 2014(4) RAJ 265 has issued directions that an application under Section 167(2) Cr.P.C. filed on behalf of the accused should be decided by the Magistrate on the same day. The petitioner in the present case seeks to take advantage of the following lapses: - i) lapses on the part of the FSL in sending the report expeditiously pertaining to the narcotic medicines recovered from the petitioner; ii) default on the part of the prosecution agency to present challan on account of above said lapse; iii) lapse on the part of the trial Court in not deciding the application filed by Public Prosecutor on September 21, 2013 prior to the expiry of 180 days under Section 36A(4) of the Act; iv) Lapse on the part of the Court in not deciding the application under Section 167(2) Cr.P.C. which was filed on September 24, 2013.
(3.) THE petitioner seems to have acquired an indefeasible right to be released on bail on the basis of the above said circumstances, as the statue confers a right upon him to be released after expiry of 180 days but at the same time, it is not out of place to observe here that as an abundant caution, the prosecution agency in order to prevent the release of accused had filed an application under Section 36A(4) of the Act on September 21, 2013 which application could have been decided after issuing notice to the petitioner in jail by September 24, 2013 before expiry of period of 180 days. Had that application been decided by passing a speaking order in accordance with law, the petitioner would not have got an opportunity to seek the advantage of default of the prosecution agency in presentation of challan by moving an application under Section 167(2) Cr.P.C.;